IDS HACKS

Article 33.1. UNC Chapter 6 – Pacific Settlement of Disputes

The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all,seek a solution by negotiation, enquiry,
mediation,conciliation, arbitration, judicial settlement, resort to regional agencies or arrangem
ents, or other peaceful means of their own choice.

ICJ, Nuclear Tests Case (Australia v. France), ICJ Reports (1974) 253, at 268, para. 46: ‘One of the
basic principles governing the creation and performance of legal obligations, whatever their
source, is the principle of good faith. Trust and confidence are inherent in international
cooperation, in particular in an age when this cooperation in many fields is becoming
increasingly essential’ (emphasis added).
•Contents:to at least negotiate.
Dispute Settlement Mechanisms: Inquiry, fact-finding
Arts 9- 36 1899 Hague Convention
•‘In disputes of an international nature ... arising from a difference of opinion on points of facts,
the Contracting Powers ... should... institute an International Commission of Inquiry, to
facilitate a solution of these disputes by elucidating the facts ....’
Usually employed when controversy over facts are bone of contention; e.g.: Commission of
inquiry on Dafur, UN Fact Finding Missions in Kosovo or in the Gaza Strip, OSCE in Ukraine
Article 36 1.
1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or
of a situation of like nature, recommend appropriate procedures or methods of adjustment.
2. The Security Council should take into consideration any procedures for the settlement of the
dispute which have already been adopted by the parties.
Article 24 Chapter 5 – Security Council
1. In order to ensure prompt and effective action by the United Nations, its Members
confer on the Security Council primary responsibility for the maintenance of
international peace and security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf.
UNC Ch VI: Pacific Settlement of Disputes
Article 34
The Security Council may investigate any dispute, or any situation which might lead to
international friction or give rise to a dispute, in order to determine whether the continuance of
the dispute or situation is likely to endanger the maintenance of international peace and
security.
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall be
takenin accordance with Articles 41 and 42, to maintain or restore international peace and
security
CHECK COUNTERMEASURES!!
PCA
Main business:
•(i) one mechanisms of dispute settlement for UN Convention of the Law of the Sea (UNCLOS),
see Art. 287.5 (Session V), remember: Arctic Sunrise Arbitration;
•(ii) Energy Charter Treaty;
•(iii) Investment Arbitration
Facility of PCA
- Arbitration
- Mediation/Conciliation
- Guest Tribunals
- Appointing Authority
- Fact Finding/COI
PCA Rules: Article101.
Any arbitrator maybe challenged if circumstances exist that give rise to justifiable doubts as to
the arbitrator’ simpartiality or independence. –Mauritius v UK case
Article 23: Strengthening of the Multilateral System....Members shall:
(a) not make a determination to the effect that a violation has occurred, that benefits have
been nullified or impaired or that the attainment of any objective of the covered agreements
has been impeded, except through recourse to dispute settlementin accordance with the rules
and procedures of this Understanding, and shall make any such determination consistent with
the findings contained in the panel or Appellate Body report adopted by the DSB or an
arbitration award rendered under this Understanding; ...
(c)follow the procedures set forth in Article 22 to determine the level of suspension of
concessions or other obligations and obtain DSB authorization in accordance with those
procedures before suspending concessions or other obligations under the covered agreements
in response to the failure of the Member concerned to implement the recommendations and
rulings within that reasonable period of time.
REMEDIES (NOW)
Clear, strong preference for complianceover all other remedies (compensation, suspension of
concessions):
Art. 19.1 DSU: Where a panel or the Appellate Body concludes that a measure is inconsistent
with a covered agreement, it shall recommend that the Member concerned bring the measure
into conformity with that agreement.
Art. 22: ‘Compensation and the suspension of concessions or other obligations are temporary
measures available in the event that the recommendations and rulings are not implemented
within a reasonable period of time’
Art. 3.7 DSU: objective of the dispute settlement mechanism is usually to secure the
withdrawalRemedies (Countermeasures) ≠ “trade remedies” (anti-dumping, subsidies,
safeguards)
COUNTERMEASURES
Only as last resort
Suspension of concessions
•22.3 DSU: first in same sector; other sector in same agreement; concessions under other
agreements
Amount?
•Proportionate to actual trade loss;
Art. 22.4: equivalent to level of nullification or impairment; EC—Bananas 22.6 (arbitration
report); nothing in DSU could be read as a justification for retaliation measures of a punitive
nature
•Punitive? Aimed at compliance? ‘Teaching a lesson’? No.
CHECK US SECTION 301 !!